Hastings Law Journal Volume 45 | Issue 4 Article 7 1-1994 How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine Alan Brownstein Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L.J. 867 (1994). Available at: https://repository.uchastings.edu/hastings_law_journal/vol45/iss4/7 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine by ALAN BROWNSTEIN* Introduction The conventional understanding of fundamental rights in consti- tutional law recognizes three distinct conceptual issues. First, there is the question of whether a right exists. Second, it must be determined whether the right has been infringed. Third, there is the problem of whether any infringement can be justified. Typically, each of these issues has its own frame of reference that requires an independent inquiry. In identifying a right and defining its scope, the inquiry is directed at the nature of (and, perhaps, the mo- tive behind) the actions of the individual that constitute the exercise of the right. Thus, we ask whether a person has the right to distribute leaflets on a street corner' or to ingest peyote during a religious cere- mony.2 Resolving the question of whether particular behavior in- volves the exercise of a right is a complex undertaking involving historical, political, and philosophical analysis. In determining whether a right has been infringed, the inquiry is directed at the state's conduct and its effect. Accordingly, assuming we have initially decided that people have a right to express their political opinions, we ask whether a particular law prevents people * Professor of Law, University of California, Davis. B.A. 1969, Antioch College; J.D. 1977, Harvard University. The author wishes to thank Erwin Chemerinsky, Dianne Pothier, and Kevin Johnson for reading drafts of this Article and for providing helpful criticism. 1. See Lovell v. City of Griffin, 303 U.S. 444 (1938) (upholding the right to distribute leaflets). 2. See Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990) (finding no constitutional right to use peyote as part of a religious ritual). [867] HASTINGS LAW JOURNAL [Vol. 45 from exercising this right.3 Finally, if an infringement exists and the state attempts to justify its conduct, the inquiry shifts to the state's purpose in taking the challenged action. We evaluate both the impor- tance of the state's objective and the degree to which that objective is furthered by the state's conduct. Thus, in reviewing the law in the previous example, we might ask whether a content-based law banning political speech serves a compelling state interest and is narrowly tai- lored to accomplish that objective.4 The convention of treating these issues as independent inquiries, however, may not accurately reflect the reality of the case law. Judi- cial inquiries regarding these categories of right, infringement, and justification often seem indistinct and intrinsically connected to each other. It is not simply that the categories merge together, but rather that they may in some basic sense be differing aspects of one unitary legal phenomenon. Thus, the case law generally reflects a behavior/ state action/state purpose totality that the Constitution either permits or prohibits depending on how one describes the right/infringement/ justification construct applied to it. Some examples may clarify this point. Consider the free exercise of religion as interpreted in Employment Division, Department of Human Resources v. Smith.5 According to the holding of Smith, the protection of the Free Exercise Clause is limited to those situations in which the state prohibits individual or group practices "only when they are engaged in for religious reasons, or only because of the reli- gious belief that they display."' 6 Thus, the purpose of the state's ac- tion-to suppress a religious practice-is not only relevant to the state's justification for its action, but also determines both the nature and scope of the right of religious freedom, and whether that right has been infringed in a particular instance.7 3. See, e.g., Terminiello v. Chicago, 337 U.S. 1 (1949) (holding that an interpretation of a disorderly conduct statute that permits punishment of provocative opinions violates the First Amendment). 4. See, e.g., Boos v. Barry, 485 U.S. 312 (1988) (overturning a law that prohibited hostile demonstrations in front of embassies because the content-discriminatory restriction on political expression did not narrowly further a compelling state interest). 5. 494 U.S. 872 (1990). 6. Id. at 877. 7. Thus, the Smith case holds that when the state does not single out religious prac- tice for discriminatory treatment, "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or pros- cribes)."' Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)). Similarly, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217 (1993), the Court implicitly collapsed its analysis of the scope of plaintiffs' free April 1994] UNDUE BURDEN ANALYSIS Alternatively, consider the right of privacy and personal auton- omy as it applies to procreational freedom. How do we understand the distinction that constitutional doctrine seems to draw between contraception, early abortions, and late abortions? 8 Does the wo- man's right change as her behavior progresses from pre-conception acts to decisions made much later in the gestation period? 9 Is there less of an infringement of the woman's right when the state prohibits late abortions than when it prohibits early abortions or the use of con- traceptives?' 0 Or does the woman's right remain constant throughout her pregnancy, with the state's interest becoming more compelling over time?" More importantly, is the doctrinal rubric that is used to explain a court's holdings on this issue a matter of real significance, or is each inquiry an alternative way of looking at essentially the same question, but from a different perspective? Thus, closely examining the way that courts determine whether a right has been infringed may be very relevant to defining the scope of the right and to evaluating the state's justification for impairing the right. Indeed, it may be an essential aspect of resolving these latter questions. At a minimum it will inform our understanding of them. exercise rights with the issues of whether those rights were infringed by the challenged ordinance and whether that infringement could be justified. Thus, Justice Kennedy's ma- jority opinion begins by stating, "[T]he protections of the Free Exercise Clause [only] per- tain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Id. at 2226. Then Ken- nedy explains that a law discriminating against a particular religion infringes the free exer- cise rights of religious practitioners of the targeted faith. Id. at 2226-27. Finally, Kennedy concludes that a law that "restricts only conduct protected by the First Amendment and fails.., to restrict other conduct producing substantial harm or alleged harm of the same sort" cannot meet strict scrutiny and must be struck down. Id. at 2234. 8. See Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992) (invalidating only those pre-viability abortion regulations that unduly burden a woman's decision to have an abor- tion); Roe v. Wade, 410 U.S. 113, 163-64 (1973) (upholding prohibition of third trimester abortions except for those situations in which an abortion is necessary to preserve a wo- man's life or health); Griswold v. Connecticut, 381 U.S. 479 (1965) (striking down restric- tions on the distribution or use of contraceptives). 9. See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 792 n.2 (1986) (White, J., dissenting) (arguing that the fundamental right to make childbearing decisions prior to conception does not extend to the decision to have an abor- tion after conception has occurred). 10. See Alan E. Brownstein & Paul Dau, The Constitutional Morality of Abortion, 33 B.C. L. Rnv. 689, 749-59 (1992) (suggesting that a woman's interest in terminating her pregnancy and the value of her right to do so declines as pregnancy progresses). 11. Roe, 410 U.S. at 162-64 (holding that the state interest in protecting potential life increases as pregnancy progresses until such time as it outweighs a woman's right to privacy). HASTINGS LAW JOURNAL [Vol. 45 HASTINGS LAW JOURNAL [Vol. 45 Moreover, in practical terms, the grounds for establishing that an infringement has occurred may be the determinative factors in adjudi- cating constitutional violations and protecting rights. Courts and liti- gators evaluate statutory language, state purposes, and the effects of state action to determine if these factors, either alone or in combina- tion, constitute the infringement of a fundamental right. These are the doctrinal parameters that describe what the state cannot do, or, alter- natively, what individuals are protected in doing, under the Constitu- tion. In a very real sense, that doctrinal picture represents the practical definition of a constitutional right.